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Nuckel v. Borough of Little Ferry Planning Board

208 N.J. 95, 26 A.3d 418 (2011)

ZONING; VARIANCES; ACCESSORY USES; PRINCIPAL USES — A driveway on one property, but serving a separate property, is considered to be a new principal use on the property where it is located and not merely an accessory use to that property.

A developer proposed to merge several existing lots into two new lots and to construct a hotel on the waterfront of a lot with no highway access. It also proposed building a driveway on the second lot that would continue across a corner of an adjacent lot, owned by the same principals as the developer’s lots. It would provide the hotel with highway access. All the lots were located in a Highway and Regional Business Zone, which generally allowed only two permitted uses: retail stores and theaters. The zoning code also allowed hotels as a conditional use. It did not address driveways, access roads or the like as either permitted uses or conditionally permitted uses in the zone. To be an accessory use, the use had to be located on the same lot, and customarily incidental and subordinate to the principal use of a lot or a building. A lot was defined as one or more contiguous parcels of land united by a common interest or use, considered as a unit, occupied by a principal building or use and its accessory buildings and uses. Further, the code provided that any uses not permitted were prohibited.

The adjacent lot was nonconforming in two respects; it was significantly undersized and it housed a pre-existing, nonconforming auto-body shop. The developer applied for site plan approval and certain variances. Over objections, the planning board approved the applications subject to a condition, among others, that the developer break ground within one year. It did not do so. An objector filed an action in lieu of prerogative writs and the lower court remanded the matter to the board to: (a) consider whether it would have approved the plan without the condition that the developer break ground within one year of the approval; (b) permit the developer to file an application for site plan approval of the adjacent lot; and (c) allow the municipality to consider site plan approval of a riverfront walkway on another lot as required by the New Jersey Department of Environmental Protection. The objector appealed and the Appellate Division affirmed in an unpublished opinion. The Supreme Court denied certification.

The developer then filed two revised applications, one for site plan approval for the riverfront walkway and one for site plan approval of the adjacent lot. The board, which now included newly-appointed board members, determined that it would have approved the application even without the one-year condition. It granted the application for site plan approval for the adjacent lot and approved the riverfront walkway. The new board members did not certify that they had read the transcripts or listen to the tapes from the proceedings on the original application. At the meeting, counsel for the municipality responded to a board member’s suggestion about greenery by limiting the board’s consideration to the issues of ingress and egress.

The objector filed another action in lieu of prerogative writs. The lower court upheld the board’s actions except for the site plan approval for the adjacent lot. As to the adjacent lot, the lower court determined that two variances were necessary under the Municipal Land Use Law (MLUL). They were a use variance because the driveway would constitute a new principal use on the undersized lot; and a variance to permit expansion of a nonconforming use, because the proposed driveway would result in a constriction and diminution of the lot and, thereby shrinking the buffer zones and expanding the nonconforming auto-body shop. The lower court also remanded the matter to the planning board for a broader consideration of the site plan approval because it concluded that the municipality’s counsel had improperly narrowed the inquiry by limiting consideration to issues of ingress and egress.

The developer and the objector cross-appealed, and the Appellate Division affirmed in part, reversed in part, and remanded for further proceedings. The panel reversed and remanded the matter because the new board members had not certified that they had read the transcripts of the prior proceedings as required by statute. The panel also reversed the lower court’s determination that variances were necessary for the adjacent lot, concluding that: the driveway was essentially “neutral” and, therefore, did not constitute a new primary use for which a variance would be required; and even if the driveway expanded the nonconforming use by reducing its buffer zone, the expansion would be de minimis, such that it would not require a variance. The panel affirmed the balance of the lower court’s decision.

On appeal by certification from the Supreme Court, the objector argued that the proposed driveway on the adjacent lot required a use variance because the municipal code did not allow multiple principal uses on a lot and the driveway was not an accessory use. In addition, he contended that a variance to expand a nonconforming use was required. In response, the developer countered that no variances were required for the driveway because it was an accessory use, it was de minimis, and it did not affect the predominant use of the lot. The developer’s cross-petition contended that the Appellate Division had erred by requiring the new board members to certify that they read the transcripts from the meetings of the original application and ordering a remand to the municipality for fuller consideration of the site plan application. In opposition, the objector relied on the reasoning of the Appellate Division.

The New Jersey Supreme Court began its analysis by noting that the issue before it was not whether a variance was properly granted or denied, but whether one was needed in the first instance. The Court noted that a driveway was neither an expressly permitted use nor a permitted conditional use in the zone; this was likely because, as a rule, a driveway is considered an accessory use. However, the municipal code carried a caveat in its definition of an accessory use, making it a use which is customarily incidental and subordinate to the principal use of a lot or a building and which is located on the same lot. By that language, the code disposed of the developer’s argument insofar as it precluded the characterization of a driveway on the adjacent lot as accessory to the hotel on the other lot.

The Court concluded that the driveway would have to be classified as a new principal use for the adjacent lot, and because the code prohibited more than one principal use, a variance was required. It refused to apply the de minimis rationale in connection with the need for a variance to permit an otherwise prohibited use. A new principal use, by its very nature, cannot be inconsequential. Further, the infeasibility of a driveway anywhere else may have been a reason for granting a variance, but it was not a justification for dispensing with one.

In considering whether the proposed driveway would require a variance to expand a nonconforming use, the Court noted that the proposed driveway would not lead to the nonconforming auto-body shop, nor would it be, in any other way, accessory to it. However, if the proposed driveway was permitted, it would itself become a new conforming use. The Court held that, on remand, the planning board would need to consider whether the proximity between the nonconforming auto-body shop and the proposed driveway would aggravate the nonconformity. In addition, in determining whether a variance is required, the Court instructed the board to assess whether the proposed driveway would be an insignificant alteration in the status quo.

The Court found that, because the new board members did not certify to reading the prior transcripts, a remand was proper to allow any such member to read the transcripts of those proceedings, certify in writing that he or she had done so, and then vote. Additionally, because neither the MLUL nor the local zoning code limited the board’s consideration to ingress and egress, the Appellate Division’s decision to remand the matter to the planning board for “full consideration of the site plan was unexceptionable.”

In sum, on remand, the board was ordered to determine whether the criteria for a variance had been satisfied; consider whether the proposed driveway would merely be a de minimis expansion of the nonconforming use or would require a variance; require any new board members to read the transcripts of prior meetings, and certify that they have done so before voting on the site plan approval; and give full consideration of the site plan before voting on it.


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